Libertarians and the Law

In a previous post I mentioned the oft used “if you think X should not be illegal then I guess you’re okay with murder” argument. There is a notion out there in the political ether that libertarians who oppose certain laws are just foolish anarchists who want all laws abolished. While some libertarians are anarchists, most, if not the vast majority of them, are not. “You don’t get to pick and choose which laws are obeyed/enforced,” is the general reply to that. “For if everyone only followed/enforced the laws they liked, that would make the law ineffectual and impotent.” Perhaps, but insisting we have an obligation to obey any and all man-made laws makes the law a tyrannic oppressor rather than a protector of rights. Protecting rights is the true purpose of just laws.

Notice I said just laws. Not all laws are just. Laws whose purpose is to oppress, particularly to deliberately oppress some in favor of others, are unjust laws. But you, O reader, do not have to take my word for it. Smarter men than I have written about this.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may want to ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I-it” relationship for an “I-thou” relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

[…]

I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

Some of you will have recognized that I am quoting from Martin Luther King, Jr.’s “Letter from Birmingham Jail”. I believe he argues very well for the idea that a law’s existence does not make it right or just. And equally well he makes the case that opposition to a law or some laws does not inherently mean opposition to all laws.

I could list and speak of other laws that are currently the law of the land and that I believe are unjust. And in another post at an other time I shall. I want to speak a bit more generally about libertarianism and what it has to say about law and obedience to the law.

And to that end, I want to give you a quote from a libertarian father.

In 1858, hundreds of residents of Oberlin and Wellington, Ohio—many of them students and faculty at Oberlin College—surrounded Wadsworth’s Hotel, in Wellington, in which law enforcement officers and slavehunters held a fugitive slave named John Price, under the authority of the Fugitive Slave Act. After a brief standoff, the armed crowd stormed the hotel and overpowered the captors. Price was freed and transported to safety in Canada […]. I know these details because my son recently borrowed from the library The Price of Freedom, a book about the Oberlin-Wellington Rescue, as the incident is called (PDF). My wife and I used it as a starting point for telling our seven-year-old why we don’t expect him to obey the law—that laws and the governments that pass them are often evil. We expect him, instead, to stand up for his rights and those of others, and to do good, even if that means breaking the law.

[…]

I sincerely hope that my son never has to run for his freedom in defiance of evil laws, like John Price. I also hope, at least a little, that he never has to beat the stuffing out of police officers, as did the residents of Oberlin and Wellington, to defend the freedom of another. But, if he does, I want him to do so without reservations.

If all my son does is live his life a little freer than the law allows, then we’ve done some good. A few regulations ignored and some paperwork tossed in the garbage can make the world a much easier place in which to live. Better yet, if he sits on a jury or two and stubbornly refuses to find any reason why he should convict some poor mark who was hauled in for owning a forbidden firearm or for ingesting the wrong chemicals. Jury nullification isn’t illegal (yet), but it helps others escape punishment for doing things that are, but ought not be. No harm, no foul is a good rule for a juror, no matter what lawmakers say.

In a country where opposition to government control seems to be increasingly treated as a lack of “economic patriotism,” or a threat to national security or just extreme behavior that marks one as possible danger to the public, I believe there is good reason to be revisiting and discussing civil disobedience. I believe we should be talking about that rights, human rights, do not come from laws or the government or even the Constitution. Which means when the choice is between defending the rights of humans and obeying the law, the law should be disobeyed.

We need to remember that the law and what is right are not always the same thing. And those of us who recognize this fact have no need to apologize for opposing unjust laws. And opposing unjust law is not a sign of contempt for law but for the abuses of authority that humans enact by unjust laws. And for that there also need never be an apology.

Those who justify such abuses, on the other hand, have much explaining to do.

There is much more that I could say, but this post is already over 1500 words, so I will leave more for a future post.